Electronic Surveillance - Congress Grants Telecommunications Companies Retroactive Immunity from Civil Suits for Complying with NSA Terrorist Surveillance Program

Harvard Law Review, February 2009 | Go to article overview

Electronic Surveillance - Congress Grants Telecommunications Companies Retroactive Immunity from Civil Suits for Complying with NSA Terrorist Surveillance Program


ELECTRONIC SURVEILLANCE--CONGRESS GRANTS TELECOMMUNICATIONS COMPANIES RETROACTIVE IMMUNITY FROM CIVIL SUITS FOR COMPLYING WITH NSA TERRORIST SURVEILLANCE PROGRAM.--FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436.

In December 2005, the New York Times reported that President Bush had secretly authorized the National Security Agency (NSA) to eavesdrop without a warrant on people in the United States--including American citizens--for evidence of terrorist activity. (1) As part of the "terrorist surveillance program" (2) (TSP), the executive branch had "provided written requests or directives to U.S. electronic communication service providers to obtain their assistance with communications intelligence activities that had been authorized by the President." (3) After this information became public, over forty lawsuits were filed against a number of telecommunications companies for their alleged role in assisting the TSP; collectively, "these suits s[ought] hundreds of billions of dollars in damages." (4) The Bush Administration urged Congress to provide retroactive immunity for these companies; (5) civil liberties advocates and other groups opposed the idea. (6)

On July 10, 2008, Congress passed the FISA Amendments Act of 2008, (7) which provides blanket retroactive (8) immunity to telecommunications companies that assisted the TSP. (9) This provision allows the Attorney General to immunize these private parties from suit by certifying that the President requested their assistance and assured them that their actions were legal. (10) The provision undermines both the statutory scheme of the Foreign Intelligence Surveillance Act of 1978 (11) (FISA) and Congress's role in striking the proper balance between national security and civil liberties. Although proponents argued that blanket immunity was necessary to protect telecommunications companies from unfair penalties and to encourage their compliance in the future, (12) an amendment proposed by Senator Arlen Specter (13) would have addressed these concerns while reducing some of the problems associated with the blanket immunity provision. Congress should have passed Senator Specter's amendment rather than the blanket immunity provision that it ultimately enacted. (14)

The first version of the bill, entitled the RESTORE Act of 2007, (15) was introduced in the House by Representative John Conyers on October 9, 2007. (16) This bill did not provide for any retroactive immunity. (17) After extensive debate, the House passed the bill on November 15. (18) Meanwhile, on October 26, the Senate Select Committee on Intelligence reported an original bill entitled the FISA Amendments Act of 2007, (19) which contained a provision for retroactive immunity similar to the provision that was ultimately enacted. (20) The Intelligence Committee report stated that the bill extended retroactive immunity to telecommunications companies because "they acted in good faith and should be entitled to protection from civil suit." (21) On November 16, the Senate Committee on the Judiciary reported a different version of the bill, (22) which "d[id] not include ... blanket retroactive immunity." (23) However, the Senate voted to table the Judiciary Committee bill, (24) leaving the Intelligence Committee bill as the sole version under consideration in the Senate.

Senator Specter subsequently proposed an amendment that would "substitute the U.S. Government as a party defendant for the telephone companies," thereby shielding them from liability while still allowing courts to rule on the legality of the TSP and the constitutional questions raised by the President's assertions of executive authority. (25) Government substitution would be dependent upon a finding by the FISA court that the telecommunications companies acted "in good faith." (26) The Senate rejected this amendment by a vote of sixty-eight to thirty. (27) Ultimately, the Senate passed the bill and sent it back to the House with the blanket immunity provision intact. …

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